All employers are required to verify the identity and employment authorization of every employee hired in the United States. This is referred to as I-9 verification as it requires completion of Form I-9. This verification process normally involves an in-person physical inspection allowing the employer to examine the documents presented by the employee to determine whether they appear to be genuine. However, this in-person examination requirement was suspended due to COVID, and that suspension has been extended yet again.
Virtual I-9 Verification Established During the COVID Pandemic
On March 20, 2020, the Department of Homeland Security (DHS) announced that, due to COVID-19, employers would temporarily be allowed to conduct new hire I-9 verifications virtually while businesses were working remotely. That essentially suspended the requirement that employees physically appear in person to present their employer with their identification and employment authorization documentation.
How Does the Virtual I-9 Verification Work?
The original Virtual I-9 Verification provision allowed employers at businesses that are operating totally remotely due to COVID-19 to inspect the employee’s required documents remotely through some type of virtual connection, video or email. Then, employers must enter “COVID-19” as the reason for not conducting a physical inspection. However, it is expected that employers will conduct the in-person inspections when possible and update the I-9 forms.
Virtual Verification Has Been Extended
This temporary provision, announced at the beginning of the pandemic in March 2020, was initially set to expire on May 19, 2020, but it has since been extended several times. Most recently, on October 11, 2022, DHS and U.S. Immigration and Customs Enforcement (ICE) announced an additional nine-month extension until July 31, 2023.
Which Employees are Exempt from the Physical Inspection Requirement?
These extensions have also relaxed the definition of a remote employee, to include employees who may not exclusively work remotely. Employees are temporarily exempt from the physical inspection requirements “until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.”
What Happens When the Temporary Exemption is Lifted?
Once normal operations resume, employees who were virtually verified are required to report to their employers within three (3) business days for in-person physical verification of their identity and employment eligibility documentation. DHS recommends that employers begin the in-person verification for employees who have been virtually verified as soon as they are able as it might be difficult for larger employers to handle the number of employees that need to be verified in a three-day period.
During the follow-up in-person examination, if the same person virtually reviewed the documents they should note “COVID-19 Documents Physically examined on (date) by (name).” ICE recommends that, if the person who virtually examined the documents is not available to conduct the physical inspection, the person conducting the physical inspection should complete a new Section 2 of the Form I-9 to attach that to the complete remote inspection Form I-9.